Extended Legal Health Check Report
Employers are required to obtain and maintain workers’ compensation insurance, to protect your employees as well as yourself, in the event of workplace injury. Workplace injuries can often be a surprise, and may be sustained physically and/or psychologically. It is best practice to also have a Workplace Health and Safety policy in place, and to ensure all workers are properly inducted and follow it. It is also best practice to have an Incident Report Form so you can manage and follow up (and mitigate risk) with respect to workplace injuries or near misses. In most cases where an employee advises they have a workplace injury and you do not believe it, you will be obliged to notify your Insurer of your view and the reasons for it.
The written contract regulates the relationship. This includes setting out applicable terms and conditions so everyone is on the same page, and there is no confusion. In most cases, parties cannot contract out of the applicable laws, but there are a lot of terms which can be entered that favour the employer and which are not subject to legislation. In cases where there is no written contract, there is a greater likelihood of confusion regarding expectations for performance and conduct. This confusion can cause great distress and become very costly when a dispute arises. In order to minimize risk, all employees and contractors should have a written contract in place. However it is important not to be confused between the two, that is: who is an employee and who is a contractor?
Workplace conduct is very topical and constantly evolving. It is important to outline expectations surrounding conduct at the commencement through a detailed induction which the employee should confirm they have understood and will abide by, as well as regularly as a “refresher” whenever the policy is updated or an issue in the workplace arises. There are numerous policies governing conduct however those governing bullying, discrimination and harassment are very important because there is applicable legislation in place that strictly regulates this. There are various types of legislation, both at a federal and state level, so these policies should be comprehensive and outline expectations clearly. Employees should also know what will happen in the event of a breach, and this may be dealt with separately by a policy on disciplinary action if appropriate. In addition to the legislation, it is also helpful and important to outline expectations regarding basic conduct like communicating respectfully and demonstrating teamwork, especially given most Practices’ success is heavily dependent on teamwork. If issues arise and there are no policies, it will be more difficult for the employer to require compliance. It is best practice to be proactive and outline expectations prior to any issues arising, rather than at the same time as needing to deal with the actual issues.
Most practices in the dental and medical industry will have staff employed by the Health Professionals and Support Services Award 2010, which is available from the Fair Work Commission website, and which is regularly updated. Any person managing staff should know if and which Award applies, as well as have a good working knowledge of the relevant provisions by always referring to an updated version of the Award. In this Award, the treatment of overtime has been recently updated with respect to weekend work, pay rates, and the right to take time in lieu of overtime. There is a prescriptive procedure for taking and administering time in lieu and employers should ensure they understand this, and it is followed. It is also important to understand how overtime applies to hours which are permitted to be averaged over a certain time period. Some employers may seek to alter overtime provisions through an Individual Flexibility Agreement or Enterprise Bargaining Agreement. However these agreements are strictly regulated. In addition, the National Employment Standards will also apply to overtime and cannot be contracted out of.
In addition to undertaking these reviews as an effective management tool to give feedback, set goals and align your employees, there are also legal reasons for diarising and conducting annual reviews. For employees governed by the Health Professionals and Support Services Award 2010, employers are generally required to progress employees who are engaged and paid pursuant to a minimum classification level, to the subsequent classification after each year of service or when new skills or responsibilities are acquired and exceed those outlined in the relevant classification. There are some exceptions such as where an employee works limited or less hours. If the employer does not or forgets to do this, it may be at risk of a claim for underpayment of wages, which may also cause reputational damage, and so naturally, should be avoided.
The use of social media is rapidly becoming a common and popular tool for communicating, including for business and work purposes. Over the time social media has evolved, the laws regulating its use have also evolved. The starting point is having a good policy in place which employees are inducted in, and required to follow. This policy will at any time of concern or dispute, become the main reference tool in regulating and resolving inappropriate use. With a policy, it will be difficult for the employer to demonstrate its intention to regulate use of social media. Previously, it became clear at law that social media could not be used for an inappropriate work purpose, such as disparaging the employer or bullying colleagues. Most recently, the laws have evolved to also regulate inappropriate use of social media outside of work hours, such as communications between employees outside of work which have the effect of negatively impacting one of the employees’ wellbeing or experience when then at work. However in all cases, it is important for the employer to have a proper social media policy in place which sets out expectations of how it is used.
There are specific laws in place at a federal and also state based level, that regulate the right of pregnant women and also parents, to ensure they are treated fairly and accommodated where possible. These laws include anti-discrimination legislation, human rights and equal opportunity legislation and the Fair Work Act. Ideally, an employer will understand its obligations as well as the sources of these obligations, and collate them into one policy which is easy to follow. Over the last ten years there have been significant legal changes to protect pregnant women and parents. In addition to a statutory right to take twelve months of parental leave for employees who have completed a period of service, employers may be required to transact payments for parental leave on behalf of the Government. In many cases, women have a right to request an extra twelve months of parents leave, and also to request flexible working arrangements to accommodate their parents responsibilities. This includes with respect to breastfeeding. Laws have also relatively recently changed to formalize that employers cannot refuse requests for such flexible working arrangements, unless it can demonstrate that it would be unreasonable to do so. In order to ensure compliance and fairness, best practice is to clearly understand these legal obligations, so they can be complied with. Failing to comply with these obligations, whether actually or constructively, may also lead to reputational damage for the Practice and so naturally should be avoided.
Employers are required by law to comply with certain record keeping obligations for their employees. Employers are required to record and also outline employees’ entitlements on their pay slips. Information much include hours worked, rates of pay, details of any overtime, and tax withheld. In 2018 new laws were enacted which now place a reverse onus of proof on employers with respect to failing to maintain proper records. In the event of an underpayment claim from an employee to the Fair Work Commission, the claim will now be regarded as true, unless the employer can evidence otherwise through its records. In other words, if employers fail to maintain proper records, they will find it difficult to successfully dispute an underpayment claim. In addition, penalties such as fines may apply, and the owners of the practice could be held personally accountable. Best practice is to understand the record keeping obligations, and utilise appropriate software and processes to strictly comply with them.
The application and protection of unfair dismissal laws is quite a complicated and evolving area of law. It is important for employers to firstly understand whether not these laws apply, and it will generally depend on whether the practice is regarded as a small employer, as well as the period of service of the relevant employee. If these laws apply, then an employee may apply to the Fair Work Commission for a remedy. In simple terms these laws require the employer to have a valid and lawful reason for terminating the employee, as well as following a fair process to execute the termination. Therefore even if there was a valid reason for a termination, an employee may still succeed on a complaint if the employer did not follow the proper process which may include assessment of issues such as not unreasonably refusing the presence of a support person, providing a written warning explaining the employment is at risk and an opportunity to improve, and consulting with the employee. In may cases, there may be some overlap between these laws and other laws such as discrimination, adverse action and unlawful termination. As the area is quite complicated and topical, it is suggested that employers seek legal advice when faced with issues surrounding terminations of employment.
Generally speaking, most employees are subject to the successful completion of a three month probationary period. Employers may not know that they are entitled to extend the probationary period if further assessment is required of the employee’s suitability for the role, whether from a technical or conduct point of view. It will be important of course for an employer to document it has valid grounds for an extension, such as the employee having been absent and not working for a substantial part of the probationary period, or the employee not having had the opportunity to demonstrate the requisite skills yet.
In 2018 the laws regarding casual employees changed. Firstly, there were some court decisions which found some casual employees can be found to be permanent and entitled to be back paid for leave and other entitlements. This can happen even where the employee receives the casual loading. The courts will generally look to the substance of the relationship, rather than what a contract says. Secondly, the Health Professionals and Support Services Award 2010 now entitles a casual employee after twelve months of service to request conversion to a permanent role. Employers are only permitted to refuse such a request where they can show it is unreasonable. The burden is on the employer to evidence the unreasonableness.
It is quite common, especially in small practices, for an employer to want to change hours or tasks to meet business needs. Often an employment contract is drafted to include such a clause. However the Fair Work Act, as well as the Awards, contain rules and processes with respect to workplace change. Firstly, if a change is substantive, such as a different role or significant change of pay, it might actually result in a termination and a new role. Secondly, in many cases employers are required to “consult” with employees about workplace change, from a change of ordinary hours to a termination.
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